Gitmo Detainees blocked by court

[Navy1960]

A federal appeals court has temporarily blocked a judge's decision to immediately free 17 Chinese Muslims at Guantanamo Bay into the U.S.

The U.S. Court of Appeals for the D.C. Circuit issued the emergency stay Wednesday at the request of the Bush administration so that government lawyers can prepare an appeal.

It comes after U.S. District Judge Ricardo M. Urbina (ur-BEE'-nuh) on Tuesday ordered the government to free the detainees by Friday. Urbina said it would be wrong for the Bush administration to continue holding the detainees, known as Uighurs (pronounced WEE'gurz), since they are no longer considered enemy combatants.

The Associated Press: Court blocks judge's order to free Chinese Muslims

Looks like the appeals court is not playing ball with the Supreme Court .

 

[Diuretic]

I don't think it's case of the federal appeals court not playing ball with the Supreme Court, it's more the appeals court temporarily staying the judge's direction.

 

[Navy1960]

I don't think it's case of the federal appeals court not playing ball with the Supreme Court, it's more the appeals court temporarily staying the judge's direction.

Diuretic, the only reason I made the comment was because of detainee's being able to have access to American Court rooms in the United States. I personally don't think even after the recent Supreme Court decision this issue is resolved. I do believe that depending on whoever wins the White House this issue will be addressed one way or the other.

 

[Luissa]

So we should keep people detained without cause even if they are not citizens of our country or a threat to our country. I am not a lawyer but wouldn't that be something like false imprisonment.... And Harold and Kumar were set up!

 

[Navy1960]

So we should keep people detained without cause even if they are not citizens of our country or a threat to our country. I am not a lawyer but wouldn't that be something like false imprisonment.... And Harold and Kumar were set up!

Luissa I don't know how you gathered all that from my posting, but if your seeking my opinion, what I believe is that if a combatant is picked up on the battlefield they should be accorded the rights of a P.O.W. While the Geneva convention did not clearly cover people such as terrorists on the battlefield as a nation , IMHO I think it would be do well for our country to treat these combatants as P.O.W.'s anyway. That will allow them access to the Red Cross or Red Creset and also give them some basic rights. As for access to American courts, IMO I do not think it wise to allow access to American civilian courts to an enemy combatant. I also do not think it's right to hold them forever without some recognition in their status as well. This has led a situation we are in now, where some of these combatants are held for years without charge or change in status.

 

[Larkinn]

Luissa I don't know how you gathered all that from my posting, but if your seeking my opinion, what I believe is that if a combatant is picked up on the battlefield they should be accorded the rights of a P.O.W. While the Geneva convention did not clearly cover people such as terrorists on the battlefield as a nation , IMHO I think it would be do well for our country to treat these combatants as P.O.W.'s anyway. That will allow them access to the Red Cross or Red Creset and also give them some basic rights. As for access to American courts, IMO I do not think it wise to allow access to American civilian courts to an enemy combatant. I also do not think it's right to hold them forever without some recognition in their status as well. This has led a situation we are in now, where some of these combatants are held for years without charge or change in status.

What do you propose then? If we don't allow them access to civilian courts, and you don't want them to stay in jail forever (which is what will happen, basically), then what? Military courts? Considering the absolute farce they have been so far (how often do you see prosecutors quitting because the courts are too biased towards their side?), I don't think they are much of an option.

 

[Navy1960]

What do you propose then? If we don't allow them access to civilian courts, and you don't want them to stay in jail forever (which is what will happen, basically), then what? Military courts? Considering the absolute farce they have been so far (how often do you see prosecutors quitting because the courts are too biased towards their side?), I don't think they are much of an option.

IMO when their status is changed to that of a P.O.W. as it should be in the first place, then a Military tribunal can and should process these indivduals on a case by case basis. I am not advocating they stay in jail forever, however anyone that is picked up on the battlefield in armed conflict with the United States Military has not commited a civilian offense, he and or she is a P.O.W. and should be treated as such. I do believe that a Military tribunal should allow these individuals access to counsel anytime they wish and representation from whomever they choose. The problem has been is that the Bush Administration did not apply a really simple principle to the battlefield when this war began and that was to apply the P.O.W. status to these indivuduals rather than leave them in limbo.

 

[Larkinn]

IMO when their status is changed to that of a P.O.W. as it should be in the first place, then a Military tribunal can and should process these indivduals on a case by case basis.

Problem with that is this:

Guantanamo Bay military prosecutor quits over detainee case

Maybe I'd be ok with military tribunals, if it had civilian oversight. But the way the Bush administration has been running them is completely outrageous.

I am not advocating they stay in jail forever, however anyone that is picked up on the battlefield in armed conflict with the United States Military has not commited a civilian offense, he and or she is a P.O.W. and should be treated as such.

Define battlefield. The USSC defined O'hare airport as a battlefield in justifying holding Padilla. This seems, at first glance, absurd. But then when things are terrorism related, what exactly is the battlefield? Another fun fact: This can be done, with no evidence, or probable cause, to US citizens. O'Connor says this is ok as long as the government is right. That is, its ok to hold a US citizen indefinitely on terrorism related charges (charges is the wrong word really....maybe accusations), as long as the accusations are in fact right. Anyone else see the circularity of this?

BTW...Bush also has no authorization to have such courts without Congressional approval.

I do believe that a Military tribunal should allow these individuals access to counsel anytime they wish and representation from whomever they choose.

Sure, but when they can't afford lawyers (as almost all of them can't), then who do we appoint them? Military lawyers? Soon we'll run out as all of them who defend these guys and do a good job get demoted/fired/reprimanded for doing their job well.

The problem has been is that the Bush Administration did not apply a really simple principle to the battlefield when this war began and that was to apply the P.O.W. status to these indivuduals rather than leave them in limbo.

Well thats one of the problems, yes. But only one of many.

 

[Navy1960]

Problem with that is this:

Guantanamo Bay military prosecutor quits over detainee case

Maybe I'd be ok with military tribunals, if it had civilian oversight. But the way the Bush administration has been running them is completely outrageous.



Define battlefield. The USSC defined O'hare airport as a battlefield in justifying holding Padilla. This seems, at first glance, absurd. But then when things are terrorism related, what exactly is the battlefield? Another fun fact: This can be done, with no evidence, or probable cause, to US citizens. O'Connor says this is ok as long as the government is right. That is, its ok to hold a US citizen indefinitely on terrorism related charges (charges is the wrong word really....maybe accusations), as long as the accusations are in fact right. Anyone else see the circularity of this?

BTW...Bush also has no authorization to have such courts without Congressional approval.



Sure, but when they can't afford lawyers (as almost all of them can't), then who do we appoint them? Military lawyers? Soon we'll run out as all of them who defend these guys and do a good job get demoted/fired/reprimanded for doing their job well.



Well thats one of the problems, yes. But only one of many.

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


Thats part of what P.O.W. status brings, so to that end a person can request and be appointed a lawyer of their choosing. The Bush administration has done quite a few things that are beyond what one would consider reasonable. However, I would argue that yes, the Military can carry these courts out with civilian oversight. In a Military Court for any service member charged they have the right to cousel and that counsel can be a civilian so I so not see where it would be all that different. You can even constitute a tribunal with civilian oversight. The key though is without a status these indivduals have been stuck in limbo and IMO , that is because the Bush Administration had a desire to keep these people off the battlefield in whatever way they could. It's my opinion though they could have done this and given them P.O.W. status at the same time and this would afforded them ability to release those that were not true battlefield combatants.

 

[Diuretic]

Diuretic, the only reason I made the comment was because of detainee's being able to have access to American Court rooms in the United States. I personally don't think even after the recent Supreme Court decision this issue is resolved. I do believe that depending on whoever wins the White House this issue will be addressed one way or the other.

It's a difficult one. Wait until China asks for them to be handed back.

 

[Larkinn]

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Thats part of what P.O.W. status brings, so to that end a person can request and be appointed a lawyer of their choosing.

Not sure what right they would have to get appointed a civilian lawyer. US Government has limits on its own, and what government lawyer would they get?

The Bush administration has done quite a few things that are beyond what one would consider reasonable. However, I would argue that yes, the Military can carry these courts out with civilian oversight.

W00t.

In a Military Court for any service member charged they have the right to cousel and that counsel can be a civilian so I so not see where it would be all that different.

Actually it would be different in one key respect, and this is the reason why the Bush administration would argue against civilian oversight. The civilian court would see classified information. The civilian lawyer would not (most likely). There is information that often is asserted to be proof that the defendant is guilty, but is never shown to the defendants lawyers and so are impossible to refute.

You can even constitute a tribunal with civilian oversight. The key though is without a status these indivduals have been stuck in limbo and IMO , that is because the Bush Administration had a desire to keep these people off the battlefield in whatever way they could. It's my opinion though they could have done this and given them P.O.W. status at the same time and this would afforded them ability to release those that were not true battlefield combatants.

I agree. We need to try them. Their current status is untenable, unconstituional, and immoral.

 

[Larkinn]

It's a difficult one. Wait until China asks for them to be handed back.

I don't think they will. The Chinese are more than happy for us to do their dirty work for them, they aren't very fond of the Uighurs either.

 

[rayboyusmc]

I also do not think it's right to hold them forever without some recognition in their status as well. This has led a situation we are in now, where some of these combatants are held for years without charge or change in status.

I agree that we are now in a mess. Some of those still imprisoned were not picked up on the battlefield but were turned in by their personal enemies.

It seems to me that we are at a point where we are willing to keep them indefinately, torture if we want, and then let some go without charges or any kind of recompense.

Try them and then either punish or free them. But to just lock you away for ever is total bullcrap and more deserving of Russia and China than the US.

 

[Navy1960]

While I understand that the in these cases information is presented often times as hearsay and not presented to the lawyer of the accused. That is where the civilian oversight comes into play. If the status is changed to that of P.O.W. then the Administration no matter who that is would be forced to adhere to a standard treatment of all these individuals and it is my opinion that especially for individuals that were not picked up on the battlefield as combatants in arms against the United States then their status can be fast tracked.

 

[Larkinn]

While I understand that the in these cases information is presented often times as hearsay and not presented to the lawyer of the accused. That is where the civilian oversight comes into play. If the status is changed to that of P.O.W. then the Administration no matter who that is would be forced to adhere to a standard treatment of all these individuals and it is my opinion that especially for individuals that were not picked up on the battlefield as combatants in arms against the United States then their status can be fast tracked.

A standard treatment? Maybe. AFAIK, however, if they were considered POW's, we still wouldn't need to give them constitutional protections. I'm not completely sure of that though. Actually my guess would be no, but again I'm not sure.

 

[AllieBaba]

IMO when their status is changed to that of a P.O.W. as it should be in the first place, then a Military tribunal can and should process these indivduals on a case by case basis. I am not advocating they stay in jail forever, however anyone that is picked up on the battlefield in armed conflict with the United States Military has not commited a civilian offense, he and or she is a P.O.W. and should be treated as such. I do believe that a Military tribunal should allow these individuals access to counsel anytime they wish and representation from whomever they choose. The problem has been is that the Bush Administration did not apply a really simple principle to the battlefield when this war began and that was to apply the P.O.W. status to these indivuduals rather than leave them in limbo.

Absolutely military tribunal.

 

[Navy1960]

A standard treatment? Maybe. AFAIK, however, if they were considered POW's, we still wouldn't need to give them constitutional protections. I'm not completely sure of that though. Actually my guess would be no, but again I'm not sure.

Larkinn the United States is a signatory to the Geneva Accords and P.O.W's have rights under those Accords. I am not sure on the issue here, but it would seem to me that during World War II when German POW's were brought to the US as POW's.

Germans in North America and sometimes Britain fared much better. Food was plentiful, and they ate better then their families in Europe did. Camps for German POWs were set up all over England and the United States. German POWs had medical care, shelter, and were paid wages for their labor, although very low ones. They worked on farms and work gangs. Some died in captivity, either due to wounds in combat or trying to escape. In one incident, zealous Nazi U-boat crewmembers killed a POW that had collaborated with the Allies. Thousands of German POWs attempted escape, with one pair even trying to cross over the Arctic to get from Canada to Germany. Most were recaptured; only one successful escape is recorded from North .


It's not like our country has not had any experience in this , it would seem that the Bush Administration just did not pay attention to it.

 

[Larkinn]

Larkinn the United States is a signatory to the Geneva Accords and P.O.W's have rights under those Accords. I am not sure on the issue here, but it would seem to me that during World War II when German POW's were brought to the US as POW's.

I'm aware of that, but "rights" are a LOT different than Constitutional provisions. There is a long history of jurisprudence in the United States of fleshing out what rights the Constitution gives individuals. This is not true of the Geneva Conventions. I'm don't have the Geneva Conventions memorized, but I am pretty sure that there is nothing in them necessitating Constitutional equalities to POW's.

Germans in North America and sometimes Britain fared much better. Food was plentiful, and they ate better then their families in Europe did. Camps for German POWs were set up all over England and the United States. German POWs had medical care, shelter, and were paid wages for their labor, although very low ones. They worked on farms and work gangs. Some died in captivity, either due to wounds in combat or trying to escape. In one incident, zealous Nazi U-boat crewmembers killed a POW that had collaborated with the Allies. Thousands of German POWs attempted escape, with one pair even trying to cross over the Arctic to get from Canada to Germany. Most were recaptured; only one successful escape is recorded from North .

It's not like our country has not had any experience in this , it would seem that the Bush Administration just did not pay attention to it.

The difference is that WWII ended, and was expected to end. The WoT has no set end. There is no provision in the Geneva Conventions that requires states to try their PoW's while hostilities are still ongoing. If hostilities go on forever, then they don't need to be tried. Of course that is just the international law, not what should actually happen.

 

[Navy1960]

I'm aware of that, but "rights" are a LOT different than Constitutional provisions. There is a long history of jurisprudence in the United States of fleshing out what rights the Constitution gives individuals. This is not true of the Geneva Conventions. I'm don't have the Geneva Conventions memorized, but I am pretty sure that there is nothing in them necessitating Constitutional equalities to POW's.



The difference is that WWII ended, and was expected to end. The WoT has no set end. There is no provision in the Geneva Conventions that requires states to try their PoW's while hostilities are still ongoing. If hostilities go on forever, then they don't need to be tried. Of course that is just the international law, not what should actually happen.

Well the difference at least to me is this, when a person is caught on the battlefield in armed conflict with the U.S. Military and give up their arms they are at the moment a P.O.W. WWII did not have a set end as well, it's not like they said okay let's just start this thing for the U.S. on Dec. 7th 41 and end in 45. IMO by giving these individuals a blanket P.O.W. status you make them subject to international law. It will further give you ability to weed through those that were NOT picked up on the Battlefield and reaccess their status from a starting point. So take for an example a wanted terrorist on the FBI's list that is turned into US forces for money and then transported to GITMO and eventually brought to the U.S. for trial. That person would be accorded rights under the constitution in that scenario. However, for the vast majority for these cases there need not be any tribunal at all, just a status hearing as to who and what these people are and that can be conducted by the Military with civilian oversight. If for example a person is caught in armed conflict with American forces and did not surrender his or her weapons but was taken by force that is a matter for a Military tribunal to conduct. If a person is a Canadian citizen and was over in Afghanistan visitin relatives and was turned in for a reward these hearings should be able to filter through that. You simply must though give these indivuduals a starting point. That is why I suggested POW status.

 

[mightypeon]

The Geneve convention has absolutly nothing which would bestow whatever constitutional rights to a POW.

In General, the Bush administration defined the term "illegal combatant", this term went back to a case of a German intellegence group in the far east which collaborated with Japanese forces after Germany surrendered.
Their were trialed before a (horribly biased, one of the prosecutors quit too) military commision and charged as war criminals (to me, this is an inflation of the term war criminal, in addition, it would turn the entire Free France forces, the Armija Krajowa and any other Exile army of a gouverment that surrendered to germany/Japan into war criminals. Which is obivously fairly retarded.). The supreme court than ruled that Eisenträger et. al. had no access to US courts (since they have never been in US territory, nor where US citizens) and explicitily said that it is making no statement about wether or not Eisenträger et. al. where War criminals.

As one could see, Eisenträger et. al had fairly few things to do with the terror suspects of Guantanamo, in addition, one could made a point about any US or allied forces in Afganistan or Irak beeing "unlawfull combatants" as well since no declaration of war happened. In Afganistan, that claim could be refuted by UNO Mandates, in Irak it could not.

Also, if someone in a warzone is not a POW than he is a civilian criminal. There is no "third group" period.

From a purely tactical point of view, the, in lack of a better term, "prestige loss" due to Guantanmo was likely not worth the apperantly not really permament removal of some 200 fighters.